A proposed, 24-hour general strike against President Trump’s policies has attracted considerable attention across the country and may pose risks for employers under the National Labor Relations Act.
Several groups have called for a strike on Friday, February 17, 2017, leading to the potential for employees leaving scheduled work to participate in the protest. Although employers may consider disciplining employees with unexcused absences, the walkouts could be considered protected activity under the National Labor Relations Act (the “Act”). In brief, under section 8(a)(1) of the Act, it is an unfair labor practice for an employer to threaten employees with adverse consequences or discipline employees if the employees engage in protected activity. As a general matter, activity is considered protected if it concerns employees’ interests as employees.
Just last month, the National Labor Relations Board (“NLRB”) issued a decision against an employer for disciplining employees who participated in a one-day strike stemming from a nationwide campaign to raise the minimum wage for fast food workers. EYM King of Mo., 365 NLRB No. 16 (January 24, 2017). Although the strike in EYM King of Mo. involved pay issues and more clearly related to the terms and conditions of employment than a general political strike of the nature proposed with respect to President Trump’s policies, employers must consider the fact that at least some of the policies now at issue could implicate the terms and conditions of employment. Employers should therefore exercise considerable caution if confronted with employees walking out on February 17 to participate in the proposed strike.